A federal judge has blocked a new Illinois law that allows the state to penalize anti-abortion counseling centers if they use deception to interfere with patients seeking the procedure.

  • Melllvar
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    11 months ago

    By arguing that the law ought to be struck down

    I’m saying it probably falls short of the standard and if so it ought to be struck down. If you can’t accept that I’m being sincere when I say that’s my whole fucking point, then I don’t know what else to say.

    • FlowVoid@midwest.social
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      11 months ago

      I don’t doubt your sincerity. But I think your legal analysis is wrong.

      The correct standard here is not strict scrutiny, it is intermediate scrutiny. This is a much more permissive standard that applies to all commercial speech. And it allows restrictions on what one can say, in order to prevent deceptive practices like those I described.

      The Supreme Court described their approach to commercial speech in 1980 (my emphasis):

      At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.

      The Illinois law bans deceptive speech by certain companies trying to gain clients, and therefore it does not violate the First Amendment.

      • Melllvar
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        11 months ago

        Actually, it’s your legal analysis that is wrong. Because your analysis begs the very question that the court is trying to answer: is their speech protected?

        • FlowVoid@midwest.social
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          11 months ago

          The answer is right there in the quote by the Supreme Court. Commercial speech is not protected if it’s misleading. So by definition, a law that bans deceptive speech is constitutional.

          In the case of these plaintiffs, maybe their speech is misleading and maybe it isn’t. That’s up to a jury to determine. If it’s misleading, then they are breaking the law. If not, then they are not breaking the law.

          But either way, the law stands. When you find someone not guilty of a crime, that doesn’t mean you throw out the law that made something a crime.

          • Melllvar
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            11 months ago

            You’re assuming facts that have yet to be adjudicated.

            • FlowVoid@midwest.social
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              11 months ago

              If the relevant facts are yet to be adjudicated, then there was no basis for an injunction against this law.

              • Melllvar
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                11 months ago

                Unless, of course, it were preliminary.

                • FlowVoid@midwest.social
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                  11 months ago

                  A preliminary injunction must be based on the strong likelihood that the plaintiffs will prevail.

                  If there are not any relevant facts yet, then there is likewise no basis even for a preliminary injunction.

                  • Melllvar
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                    11 months ago

                    Who said the facts don’t exist?